Crimes Against Humanity – Part III: Is an attack by a state or organization against members of its own armed forces an attack directed against a civilian population amounting to a crime against humanity?

Part III

This is the third and final post dealing with the call for submissions by International Co-Investigating Judge Michael Bohlander of the ECCC who is currently investigating Cases 003 and 004.   Querying whether there was a lacuna in defining who may form a “civilian population” for the purpose of crimes against humanity, Judge Bohlander asked the parties and the amici:

Whether, under customary international law applicable between 1975 and 1979 [the temporal jurisdiction of the ECCC], an attack by a state or organisation against members of its own armed forces may amount to an attack directed at a civilian population?

As I noted in the first post, Judge Bohlander hinted that previous discussion on interpreting who constitutes a “civilian population” may have overlooked policy aspects such as whether there is a distinction between soldiers and civilians, and that such distinction “might only make sense if speaking of soldiers and civilians of an enemy population.”  He then opined or concluded – at least so it appears from his words – that “it would seem beyond dispute that a regime which in peace times tried to cleanse its own armed forces of, for example, all soldiers holding a particular ethnicity or faith, would be engaging in crimes against humanity, because the victims’ combatant quality merely because they are soldiers would be entirely irrelevant in this context…” and that “there is no reason to think otherwise if such a campaign happened in the course of or otherwise connected to an armed conflict.”(para. 5)

The first post dealt with the contextual background relevant to Judge Bohlander’s question and provided a synopsis of the overarching arguments put forward by the International Co-Prosecutor (“ICP”) and the amici who responded to the call for submissions.  Positions of the majority were relatively the same:  a state or organization’s own forces can constitute a civilian population for the purposes of crimes against humanity. The second post covers the amici’s and ICP’s arguments in detail though a series of questions inherent in their arguments.

In this final post, I set out the rationale behind the civilian population requirement and argue:

  • An attack by a state or organization against its own armed forces is not an attack directed against a civilian population amounting to a crime against humanity.
  • Customary international law has always distinguished between soldiers and civilians, requiring crimes against humanity to be directed against a civilian population.
  • No state practice or opinio juris indicates that the distinction between a soldier and a civilian only applies to enemy populations, or only during times of war.
  • The jurisprudence indicates that this distinction is relevant even in peacetime and when evaluating attacks by a state against its own soldiers.
  • Soldiers and civilians are subject to different standards and protections.
  • If the attack is directed against non-civilians, such as soldiers, such an attack might be a violation of international humanitarian law, genocide, or a national crime, but it would not be a crime against humanity.
  • There is no gap or lacuna in legal protection of soldiers when it comes to an attack against a state’s own armed forces.
  • Statutory language and customary international law should not be ignored to achieve a preferred result.

Genesis and rationale of crimes against humanity

In answering Judge Bohlander’s question, it is essential to look at the historical context of crimes against humanity. No banal logical policy aspect1Case of MEAS Muth, 003/07-09-2009-ECCC/OCIJ, Call for Submissions by the Parties in Cases 003 and 004 and Call for Amicus Curiae Briefs, 19 April 2016, D191 (“Call for Submissions”), para. 5. seems to have been consistently overlooked by states since the time of the Nuremberg tribunal.

First, some basic propositions, which, in my opinion, are virtually beyond dispute:

a. soldiers are always distinct from civilians;

b. nothing indicates that this distinction is only relevant if speaking of an enemy population;

c. this distinction is relevant even in peacetime and when evaluating attacks by a state against its own soldiers; and

d. customary international law has always distinguished between soldiers and civilians, requiring crimes against humanity to be directed against a civilian population.

Crimes against humanity “originated as an extension of war crimes.”2M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 48 (2d ed. 1999).   Prior to that, the laws of war regulated the conduct of states and their armed forces during war and did not protect civilians from their own states.  During World War II, offences committed by the Axis Powers against their own citizens (for instance, atrocities perpetrated by the Nazi state against German and Austrian Jews) could not be considered as war crimes stricto sensu, due to the nationality of the victims.3See Complete History of the United Nations War Crimes Commission and the Development of the Laws of War, compiled by the United Nations War Crimes Commission (His Majesty’s Stationery Office, London, 1948), Ch. 8, p. 174-75.  The traditional laws of war applied only to citizens of another state.

In the aftermath of World War II, states began to conceive of the offence of crimes against humanity as a category of offences separate from war crimes. After 1945, the law of crimes against humanity was codified and crimes against humanity crystallized as a separate category of offences in order to protect civilians, thus closing the gap in the laws of war.4Id.

The separation of crimes against humanity and war crimes developed in recognition of the principle of distinction. Under this principle, parties to a conflict must at all times distinguish between civilians and combatants; attacks are permitted only against combatants, and never against civilians.5Customary International Humanitarian Law, Volume I (Jean-Marie Henckaerts and Louise Doswald-Beck eds., Cambridge University Press 2005), Rule 1 (hereinafter, “Henckaerts, Vol. 1”).

The principle of distinction gained fundamental importance as international humanitarian law developed alongside the laws of war to ensure the protection of the wounded, the sick, detainees, and civilian populations in enemy States during armed conflicts.6Id., at 3-4. This norm of customary international law is fundamental to the laws of war. It was first recognized in the 1868 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight.7See 1868 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, St. Petersburg, 29 November/11 December 1868, Preamble. It was subsequently codified in Additional Protocols I and II to the 1949 Geneva Conventions and numerous national military manuals.8International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (“AP I”), Arts. 48, 51(2), 52(2); International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609 (“AP II”), Art. 13(2); Henckaerts, Vol. 1, at 3-6, notes 71, 83, 84, 103.

The distinction between civilians and combatants underpins the laws of war and international criminal law.9Prosecutor v. Martić, IT-95-11-A, Judgement, 8 October 2008, para. 299. Customary international law recognizes a distinction between soldiers and civilians regardless of whether the soldiers and civilians are members of an enemy population or the state’s own population. No state practice or opinio juris (necessary to establish customary international law) indicates that the target of an attack can be anything other than a civilian population. If states intended to protect soldiers from crimes against humanity, whether during war or peacetime, they would have drafted the relevant international instruments defining crimes against humanity to reflect this intention. They have not done so.

The Charter of the International Military Tribunal (“IMT”) set out the initial definition of crimes against humanity as follows:

Crimes against Humanity: Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.10Charter of the International Military Tribunal, Annex to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (adopted and entered into force 8 August 1945) 82 UNTS 279, Art. 6(c) (emphasis added).

This definition was subsequently adopted by Article II(c) of the Control Council Law No. 10 (“CCL10”):

Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.11Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, 20 December 1945, 3 Official Gazette Control Council for Germany 50-55 (1946), Art. II(c) (emphasis added).

It was also reflected in Article 5(c) of the Charter of the International Military Tribunal for the Far East (“IMTFE”):

Crimes against Humanity: Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population….12Charter of the International Military Tribunal for the Far East, General Order 1, General Headquarters Supreme Commander of the Allied Forces (19 January 1946) 4 Bevans 20 (as amended 26 April 1946, 4 Bevans 27), Art. 5(c) (emphasis added).

The Nuremberg Principles, which codify the principles of international law recognized in the IMT Charter and Judgment,13U.N. General Assembly, GA Res. 177 (II), Formulation of the Principles Recognized in the Charter of the Nurnberg Tribunal and in the Judgment of the Tribunal, 21 November 1947. define crimes against humanity as crimes committed against a civilian population:

Murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population, or persecutions on political, racial, or religious grounds….14Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, II Yearbook of the International Law Commission (1950) 374-78, Principle 6(c) (emphasis added).

Some interpret these instruments enacted in the aftermath of World War II to mean that only crimes against humanity of the “murder-type” are committed against a civilian population, while “persecution” may be committed against a civilian or non-civilian population.15Cassese’s International Criminal Law 102 (A. Cassese, L. Baig, and M. Fan eds., 3rd edition OUP 2013).   This interpretation is unsound, and may stem from the apparent separation in the IMT and IMTFE Charters, CCL10, and the Nuremberg Principles between “murder-type” crimes committed against a civilian population and persecutions.16See IMT Charter, Art. 6(c); IMTFE Charter, Art. 5(c); CCL10, Art. II(a); Nuremberg Principles, Principle 6(c). See also Egon Schwelb, Crimes against Humanity, 23 Brit. Y. B. Int’l L. 178, 190 (1946), analyzing the text of Article 6 (c) of the IMT Charter and discussing the interpretation distinguishing between murder-type and persecution crimes. See also Matthew Lippman, Crimes against Humanity, 17 B. C. Third World L. J. 171, 274 (1997), discussing the drafting and negotiation process of the IMT Charter and Article 6 in particular.

Were crimes against humanity to apply only to a civilian population where murder, extermination, enslavement, deportation, or other inhumane acts allegedly occurred, but to any population with regard to persecutions, fewer people would be protected from more serious crimes (such as murder and extermination) than would be protected from a seemingly less serious crime (persecution). This outcome does not seem to be in keeping with the origins of crimes against humanity as rightly noted by the eminent scholar, Egon Schwelb, who notes that the Berlin Protocol of 6 October 1945 amended the semi-colon after “war” in the English and French versions of Article 6(c) to a comma, to align the two versions with the Russian version, making unsustainable the division of crimes against humanity into “murder type” and persecutions.17See Egon Schwelb, Crimes against Humanity, 23 Brit. Y. B. Int’l L. 178, 190 (1946).

In an attempt to advance international law, the International Law Commission (“ILC”), which formulated the Nuremberg Principles, drafted codes of offences against the peace and security of mankind in 1951, 1954, 1991, and 1996.  None of the codes were adopted.18U.N. General Assembly, GA Res. 177 (II), Formulation of the Principles Recognized in the Charter of the Nurnberg Tribunal and in the Judgment of the Tribunal, 21 November 1947.  The ILC 1951 and 1954 draft codes define crimes against humanity as requiring an attack directed against a civilian population. The 1991 draft code did not expressly define crimes against humanity. The 1996 draft code defined crimes against humanity without any requirement that an attack be directed against a civilian population.19Draft Code of Offences against the Peace and Security of Mankind, II Yearbook of the International Law Commission (1951) 133-37, Art. 2(10); Draft Code of Offences against the Peace and Security of Mankind, II Yearbook of the International Law Commission (1954), Art. 2(11); Draft Code of Offences against the Peace and Security of Mankind, II Yearbook of the International Law Commission 101-07 (1991); 1996 Draft Code of Crimes against the Peace and Security of Mankind, 51 UN GAOR Supp. (No. 10) at 14, U.N. Doc. A/CN.4/L.532, corr.1, corr.3 (1996), Art. 18. Suffice it to say, these draft codes are not indicative of customary international law, but are mere examples of the ILC’s efforts to advance – not codify – international law.20Statute of the International Law Commission, adopted by the General Assembly in resolution 174 (II) of 21 November 1947, as amended by resolutions 485 (V) of 12 December 1950, 984 (X) of 3 December 1955, 985 (X) of 3 December 1955 and 36/39 of 18 November 1981, Arts. 1, 15.

Since Nuremberg, all statutes of international and internationalized tribunals explicitly refer to a civilian population when defining crimes against humanity, without any qualification of that expression. Surely this cannot be due to some oversight or a lack of appreciation of customary international law, or some latent nuance in one of the elements of crimes against humanity, namely, who is encompassed under the definition of a civilian population.

The International Criminal Tribunal for the Former Yugoslavia (“ICTY”), the International Criminal Tribunal for Rwanda (“ICTR”),21Statute of the International Criminal Tribunal for Rwanda (31 January 2010), Art. 3. the Special Court for Sierra Leone (“SCSL”),22Statute of the Special Court for Sierra Leone, adopted by U.N. Security Council Resolution 1315 (14 August 2000), Art. 2. and the Special Panels for Serious Crimes in East Timor,23Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, adopted by U.N. Transitional Administration in East Timor, U.N. Doc. UNTAET/REG/2000/15 (6 June 2000), Art. 5(1). each established after or during the commission of the crimes they were created to address, were required to apply settled customary international law.24See, e.g., Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704, 3 May 1993, para. 34.

For instance, Article 5 of the ICTY Statute reads as follows:

The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, … and directed against any civilian population: ….

The drafters of the Statute included only those provisions that were “beyond any doubt” customary international law. Why?  Because the drafters of the ICTY Statute (as well as those who drafted the statutes for these ad hoc tribunals that followed the ICTY) recognized that they could not create new law to be applied ex post facto. In the words of the UN Secretary-General, “the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise.”25Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704, 3 May 1993, para. 34 (emphasis in original). See also id., para. 29 (emphasis in original).   It is beyond cavil that the ICTY Statute, as well as the statutes of the other ad hoc tribunals, reflects the United Nations’ and states’ consistent understanding of customary international law since the Nuremberg tribunal.

The Rome Statute of the International Criminal Court (“ICC”), which is considered to demonstrate strong indicia of the opinio juris of the international community regarding customary international law on crimes,26See Dominic McGoldrick et al., The Permanent International Criminal Court: Legal and Policy Issues 340 (Hart Publishing, 1st ed., 2004). also specifies that an attack directed against a civilian population is a required element of crimes against humanity.27Rome Statute of the International Criminal Court, done at Rome on 17 July 1998, in force on 1 July 2002, 2187 UNTS 38544, Art. 7.

In contrast to the statutes of the ad hoc tribunals, the Rome Statute would apply only prospectively. If the drafters of the Rome Statute perceived an unacceptable protection gap and considered that customary international law had progressed to the extent that a state’s own armed forces could, under certain circumstances, be considered civilians, they could have defined crimes against humanity including the term “civilian”.  The 160 States Parties, after a three-year drafting process, chose not to alter or expand the definition.

Similarly, had there been a gap in the protection of a state’s own soldiers under international criminal law, the currently proposed ILC Draft Convention on Crimes Against Humanity could have removed the requirement that the target of an attack be a civilian population. Yet, the 2015 draft retains the requirement that an attack be directed against a civilian population.28U.N. General Assembly, Int’l Law Comm’n Rep (ILC), First Report on Crimes Against Humanity, para. 177, U.N. Doc. A/CN.4/680 (17 February 2015).

Who is encompassed under the definition of a “civilian population”?

Answer: A person not in the armed services or the police force.

Since Nuremberg, none of the statutes define the expression “civilian population.” Two international legal instruments that do define this expression pre-date the 1975-79 period, the temporal jurisdictional period of the ECCC: a. the 1938 Draft Convention for the Protection of Civilian Populations against New Engines of War (“1938 Draft Convention”)29International Law Association (ILA), Draft Convention for the Protection of Civilian Populations against New Engines of War, Amsterdam, Adopted on the Fortieth Conference of the ILA, 29 August-2 September 1938. and b. the International Committee for the Red Cross and Red Crescent’s (“ICRC”) 1956 Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War (“ICRC Draft Rules”).30International Committee of the Red Cross (ICRC), Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War, Geneva, September 1956.  Both define “civilian population” as those who are not members of the armed forces or combatants.

Under Article 1 of the 1938 Draft Convention, “the phrase ‘civilian population’ within the meaning of this Convention shall include all those not enlisted in any branch of the combatant services nor for the time being employed or occupied in any belligerent establishment as defined in Article 2.”

Under Article 4 of the ICRC Draft Rules, “the civilian population consists of all persons not belonging to one or other of the following categories: (a) Members of the armed forces, or of their auxiliary or complementary organizations. (b) Persons who do not belong to the forces referred to above, but nevertheless take part in the fighting.”

Both definitions accord with the ordinary meaning of the term “civilian”: “a person not in the armed services or the police force.”31Customary International Humanitarian Law Volume II: Practice (Jean-Marie Henckaerts & Louise Doswald-Beck eds., Cambridge University Press, 2005), setting out the definition of civilians in the military manuals of various States in paras. 712-48.  These definitions of “civilian” also accord with the definition found in the Concise Oxford English Dictionary.32Concise Oxford English Dictionary, 261 (10th ed., 2002).

Definition of “civilian population” in the case law of international and internationalized criminal courts and tribunals

The interpretation of “civilian population” cropped up in the ad hoc tribunals. Their jurisprudence demonstrates that the meaning of “civilian population” had not changed to include members of armed forces.  The Trial and Appeals Chambers of the ICTY, ICTR, and SCSL that have dealt with the interpretation of “civilian population” and whether soldiers can ever be considered civilians have uniformly required that the targeted population be predominantly civilian in nature. The presence of certain non-civilians in their midst does not change the character of the population.33See, e.g., Prosecutor v. Tadić, IT-94-1-T, Judgement, 7 May 1997, para. 638; Prosecutor v. Kordić & Čerkez, IT-95-14/2-A, Judgement, 17 December 2004, para. 91; Prosecutor v. Galić, IT-98-29-A, Judgement, 30 November 2006, para. 136; Prosecutor v. Milošević, IT-98-29/1-A, Judgement, 12 November 2009, para. 50; Prosecutor v. Akayesu, ICTR-96–4-T, Judgement, 2 September 1998, para. 582; Prosecutor v. Fofana & Kondewa, SCSL-04–14-A, Judgment, 28 May 2008, para. 258.

The ICTY Trial Chamber touched upon the interpretation of “civilian population” in one of its early cases, Mrškić et al. In its decision reviewing the indictment pursuant to Rule 61 of the Rules of Procedure and Evidence (“RPE”) (hereinafter “Mrškić Rule 61 Decision”) (1996), the Trial Chamber stated:

Although according to the terms of Article 5 of the Statute of this Tribunal, the combatants in the traditional sense of the term cannot be victims of a crime against humanity, this does not apply to individuals who, at one particular point in time, carried out acts of resistance.34Prosecutor v. Mrškić, IT-95-13-R61, Review of Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, 3 April 1996, para. 29.

The Trial Chamber relied on the Final Report of the Commission of Experts, established by UN Security Council resolution S/1994/674 stating:

It seems obvious that article 5 applies first and foremost to civilians, meaning people who are not combatants. This, however, should not lead to any quick conclusions concerning people who at one particular point in time did bear arms…. Information of the overall circumstances is relevant for the interpretation of the provision in a spirit consistent with its purpose.35Final Report of the Commission of Experts, established pursuant to Security Council Resolution S/1994/674, 27 May 1994, para. 78. The Commission was established “to examine and analyse information gathered with a view to providing the Secretary-General with its conclusions on the evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law committed in the territory of the former Yugoslavia.” Id., p. 1.

The Trial Chamber also noted that this position is also supported by certain case law, particularly the Barbie case.36Cour de Cassation, Chambre Criminelle [French Supreme Court, Criminal Chamber], 20 December 1985 (“Barbie Case”), No. de Pourvoi 85-95166), where the members of the French resistance were included in the victim group of crimes against humanity committed by the accused. See Part II discussing these cases in detail. The Trial Chamber then considered that former resistance fighters who had laid down their arms and were patients of the Vukovar hospital could be victims of crimes against humanity.37Prosecutor v. Mrškić, IT-95-13-R61, Review of Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, 3 April 1996, para. 32.

The ICTR Trial Chamber in Akayesu (1998) considered that “an act must be directed against the civilian population if it is to constitute a crime against humanity.”38Prosecutor v. Akayesu, ICTR-96-4-T, Judgement, 2 September 1998, para. 582.  The Trial Chamber stated that “[m]embers of civilian population are people who are not taking any active part in the hostilities, including members of the armed forces who laid down their arms and those persons placed hors de combats….”  In a footnote to this statement, the Trial Chamber noted that “this definition assimilates the definition of ‘civilian’ to the categories of persons protected by Common Article 3 of the Geneva Conventions; an assimilation which would not appear to be problematic.”39Id., para. 582, note 146. The Trial Chamber also noted that the Mrškić Rule 61 Decision recognized that crimes against humanity could be committed where the victims were persons hors de combat.40Id.

Relying on Article 50 of Additional Protocol I (“AP I”), the Trial Chamber further stated that “[w]here there are certain individuals within the civilian population who do not come within the definition of civilians, this does not deprive the population of its civilian character.”41Id. The Trial Chamber’s definition in Akayesu was not contested or discussed on appeal.42See Prosecutor v. Akayesu, ICTR-96-4-A, Judgement, 1 June 2001, para. 447. The Appeals Chamber discussed other issues related to crimes against humanity, such as whether there is a requirement of “discriminatory intent.” Id., paras. 447-52.

Although Akayesu states that “members of civilian population are people who are not taking any active part in the hostilities, including … hors de combat,”43Prosecutor v. Akayesu, ICTR-96-4-T, Judgement, 2 September 1998, para. 582. this statement reflects one Trial Chamber’s view and does not counterbalance the legal authority that came after, especially from the ICTY Appeals Chamber, which is also a second instance court for the ICTR.

The ICTR Trial Chamber in Kayishema (1999) discussed the definition of “civilian population” in a situation where there was no armed conflict.  The Trial Chamber observed that “[t]raditionally, legal definitions of ‘civilian’ or ‘civilian population’ have been discussed within the context of armed conflict.”44Prosecutor v. Kayishema & Ruzindana, ICTR-95-1-T, Judgement, 21 May 1999, para. 127. It then reasoned that since under the ICTR Statute, crimes against humanity may be committed outside the context of the armed conflict, “the term civilian must be understood within the context of war as well as relative peace.” The Trial Chamber did not rely on any specific authority, but concluded that “a wide definition of civilian is applicable and, … includes all persons except those who have the duty to maintain public order and have the legitimate means to exercise force.”45Id. (emphasis in original). The Trial Chamber then gave examples of non-civilians: members of the FAR (Forces Armées Rwandaises – governmental armed forces), the RPF (Rwandese Patriotic Front – dissident armed forces), the police, and the Gendarmerie Nationale.46Id., paras. 127, 172. This definition was not challenged or addressed on appeal.

Kayishema shows that even a broad definition of “civilian” excludes soldiers, and the distinction between civilian and soldier retains its significance even outside the context of armed conflict.

In Blaškić (2004), the ICTY Appeals Chamber relied on Article 50 of Additional Protocol I, Article 43 of Additional Protocol I and Article 4A of the Third Geneva Convention to determine the definition of “civilian.”47Prosecutor v. Blaškić, IT-95-14-A, Judgement, 29 July 2004, paras. 110-13. The Appeals Chamber concluded that read together, these articles establish that:

[M]embers of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status. Neither can members of organized resistance groups, provided that they are commanded by a person responsible for his subordinates, that they have a fixed distinctive sign recognizable at a distance, that they carry arms openly, and that they conduct their operations in accordance with the laws and customs of war.48Id., para. 113.

As the ECCC Trial Chamber has noted, this definition accords with the ordinary meaning of “civilian”:

The ordinary meaning of the term ‘civilian’ (in English) and ‘civil’ (in French) encompasses persons who are not members of the armed forces. [A]t the time relevant to the charges here at issue, the civilian population included all persons who were not members of the armed forces or otherwise recognized as combatants…. While the Chamber does not here rely on the definition of ‘civilian’ set out in Article 50 of Additional Protocol I to the 1949 Geneva Conventions, adopted by the ad hoc Tribunals as reflecting customary international law for the purposes of crimes against humanity post-1977, it notes that this accords with the ordinary meaning of the term.49Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Case 002/01 Judgement, 7 August 2014, E313, para. 185 (internal citations omitted).

Nine years after Kayishema and four years after Blaškić, the ICTY Appeals Chamber (which is also the Appeals Chamber of the ICTR) in Martić considered whether soldiers hors de combat could be considered civilians for purposes of determining the civilian character of the population. The Appeals Chamber in Martić decided that they could not, but that they could be victims of the underlying crimes.50Prosecutor v. Martić, IT-95-11-A, Judgement, 8 October 2008, paras. 291-314, espec. paras. 302, 311.  The Appeals Chamber first confirmed that the definition of civilian under Article 50 of Additional Protocol 1 reflects the definition of civilian for the purposes of crimes against humanity under Article 5 of the ICTY Statute and that the Trial Chamber was correct in finding that the term “civilian” in that context did not include persons hors de combat. It then found that persons hors de combat can be individual victims of crimes against humanity, “provided that all necessary conditions are met, in particular that the act is part of the widespread or systematic attack against any civilian population.”51Id., para. 313.

At around the same time as the Martić appeal, the Mrškić appeal was underway. The Mrškić appeal decision came second and is consistent with Martić. The Appeals Chamber addressed the issue of whether the individual victims of crimes against humanity must be civilians only.  Relying on Martić, the Appeals Chamber in Mrškić held that there is no requirement that the individual victims of crimes against humanity be civilians, providing that there is a widespread or systematic attack against a civilian population.52Prosecutor v. Mrškić, IT-95-13/1-A, Judgement, 5 May 2009, para. 32. The Appeals Chamber also observed, inter alia, that the Trial Chamber’s finding that the term “civilian” does not include combatants or persons hors de combat was based on the Appeals Chamber’s well-established jurisprudence, reiterated in the Martić Appeal Judgement.53Id., para. 35, citing Prosecutor v. Blaškić, IT-95-14-A, Judgement, 25 July 2004, paras 110, 113-114; Prosecutor v. Kordić & Čerkez, IT-95-14/2-A, Judgement, 17 December 2004, para. 97; Proseuctor v. Galić, IT-98-29-A,  Judgement, 30 November 2006, para. 144, fn. 437.

Under Martić and Mrškić, even by 2009 the expression “civilian population” did not expand to include persons hors de combat. Such persons can be individual victims of crimes against humanity, provided that all other requirements under Article 5 are met.  These cases demonstrate the importance of the distinction between soldiers and civilians, even when soldiers are no longer actively participating in hostilities and are no longer a threat to the State. Under the laws of war, neither soldiers hors de combat nor civilians may be lawful targets of an attack.54Fourth Geneva Convention, espec. Art. 3 (common to the four Geneva Conventions).

As recently as 2013, the ICTY Trial Chamber in Prlić et al. (as previously discussed in the second post) implicitly recognized that while a State’s own soldiers might require protection, they do not constitute part of a civilian population for purposes of crimes against humanity. The Trial Chamber considered the application of Grave Breaches of the Geneva Conventions and crimes against humanity arising from the treatment of Muslim members of the Croatian Defence Council (“HVO”) (the official military body of the Croatian Community of Herceg-Bosna, consisting of both Croatian and Muslim soldiers) by non-Muslim members of the HVO. The Trial Chamber determined that the Muslim HVO members could be considered “protected persons” for purposes of the Fourth Geneva Convention (persons who have “fallen into the hands of a party to the conflict of which they were not nationals”) using allegiance rather than nationality to determine the Muslim HVO soldiers’ status.55Prosecutor v. Prlić et al., IT-04-74-T, Judgement, 29 May 2013, Vol. 3, Ch. 5, paras. 607-11. In extending protection to the soldiers under the Grave Breaches regime, the Trial Chamber found that the soldiers’ status as soldiers did not change and still required the targeted population to be civilian for purposes of crimes against humanity.56Id., paras. 647-48.

The Trial Chamber in Prlić et al. faithfully followed the ICTY Statute and jurisprudence in maintaining the relevance and necessity in distinguishing soldiers from civilians, even when evaluating attacks against a state’s own soldiers as opposed to an enemy population.

The ECCC Trial Chamber came to the same conclusion in Cases 001 and 002 as did the ad hoc tribunals. In determining the meaning of “civilian,” the Trial Chamber specifically considered the possibility that the “entire population of a territory – including both civilian and military elements – is encompassed within an attack” and still required that the attack be directed at civilians.57Case of KAING Guek Eav, 001/18-07-2007-ECCC/TC, Judgement, 26 July 2010, E188, para. 307. “Members of the armed forces are not considered ‘civilians’ merely because they were not engaged in combat at the time of their arrests;”58Id., para. 304. they are non-civilian even if they are not armed or in combat at the time the crimes are committed.59Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Case 002/01 Judgement, 7 August 2014, E313, para. 186.

The 2015 report of the Special Rapporteur on the Topic of Crimes Against Humanity discussed the requirement that under Article 7 of the Rome Statute an attack must be “directed against any civilian population.”60U.N. General Assembly, Int’l Law Comm’n Rep (ILC), First Report on Crimes Against Humanity, U.N. Doc. A/CN.4/680 (17 February 2015), n. 272.  Relying on the ICTY and ICTR jurisprudence, including Mrškić, Blaškić, Akayesu, Kayishema, and Martić, the Special Rapporteur stated that during the armed conflict, the presence of certain combatants within the civilian population did not change its character.61Id., para. 135. Citing Kayishema, he also stated that “during a time of peace, ‘civilian’ shall include all persons except those individuals who have a duty to maintain public order and have legitimate means to exercise force to that end at the time they are being attacked.”62Id.

Is there a protection gap in case of an attack by a state against members of its own armed forces?

Answer: No.

If a regime tried to cleanse its own armed forces – whether in peacetime or during an armed conflict, for example, by killing all soldiers holding a particular ethnicity or faith, – such a campaign would be prosecuted under national law, or, depending on the circumstances, might be a violation of international humanitarian law63Henckaerts, Vol. 1, Rule 156. or genocide.64Genocide does not require that the acts be committed against a civilian population and, unlike war crimes or crimes against humanity from 1975-79, can occur in peacetime. See Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the UN General Assembly, 9 December 1948, Art. II.

The laws of war recognize the inviolability of states’ national sovereignty.65International Committee of the Red Cross (ICRC), Commentary to Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, Art. 3, para. 4500, 1987. The principle of non-intervention in the internal affairs of sovereign states was well-respected after World War II, continuing through 1975-79.66See U.N., Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Art. 2, para. 7; U.N., General Assembly, Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, G.A. Res. 2131 (XX), 21 December 1965, U.N. Doc. A/RES/20/2131 (1965); U.N., General Assembly, Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), 24 October 1970, U.N. Doc. A/RES/25/2625 (1970); U.N., General Assembly, Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, G.A. Res. 36/103, 9 December 1981, U.N. Doc. A/RES/36/103 (1981).  Nothing indicates that states weakened their sovereignty over their own soldiers during peacetime, so that their treatment of their own soldiers would be regulated by international criminal law rather than national military law.

Even in peacetime, soldiers are normally held to different standards than civilians. Soldiers are subject to their own legal regime, which often differs from domestic criminal law.  For instance, Cambodia established a separate military justice system that applies to soldiers but not civilians and applies in peacetime as well as war.67See, e.g., 1954 Cambodian Code de Justice Militaire.  Separate legal regimes for soldiers are common the world over.68Providing for separate legal regimes, see e.g. France: Projet de loi portant institution d’un code de justice militaire [French Law Project imposing a Code of Military Justice], French Senate, 8 July 1965; Le tribunal aux armées de Paris (TAAP), the last military-only jurisdiction in peace-time, dissolved on 1 January 2012; Switzerland: Militärstrafgesetz, MStG, in force since 1 January 1928; Austria: Art. 84 B-VG (Austrian Constitution), only in wartime; Germany: Art. 96. II, Grundgesetz (German Constitution), only in exceptional cases, such as in case of attack, on high-sea; The United Kingdom: The Armed Forces Act 2006 (in force 31 October 2006); The United States: Uniform Code of Military Justice (10 U.S.C. §§ 801-946), in force since 1951.  This disparate treatment is necessary to instill a sense of discipline among soldiers.69Louis B. Nichols, The Justice of Military Justice, 12 Wm. & Mary L. Rev. 482, 483-84 (1971). As the United States Supreme Court noted in Parker v. Levy, “[T]he military is, by necessity, a specialized society separate from civilian society…. [T]he military has, again by necessity, developed laws and traditions of its own during its long history.”70Parker v. Levy, 417 U.S. 733, 743 (1974).   Soldiers’ primary business is to fight wars.71Id.

States have an abiding interest in retaining the ability to deal with their own soldiers internally.  This allows them to address potential internal uprisings by soldiers (see what is going on in Turkey today as a result of the attempted coup d’état),72Mass arrests followed after the attempted coup, with at least 6,000 detained, including at least 2,839 soldiers. See Turkey: Mass arrests after coup bid quashed, says PM, BBC News, 16 July 2016, available at http://www.bbc.com/news/world-europe-36813924; Turkey coup attempt: Erdogan rounds up suspected plotters, CNN, by Sheena McKenzie and Ray Sanchez, 16 July 2016, available at http://edition.cnn.com/2016/07/17/asia/turkey-attempted-coup/index.html. and to be able to employ otherwise lawful military tactics. National laws address such situations.

Were a state’s treatment of its own soldiers in peacetime to be subjected to international criminal law, a state could be accused of crimes against humanity for attacking its own soldiers if those soldiers turned against the State; for example, in a rebellion or attempted coup d’état.

Additional Protocol II (“AP II”) demonstrates that states never intended such a result.

AP II applies during non-international armed conflicts between a State Party’s armed forces and dissident armed forces or other organized armed groups that, under responsible command, exercise such territorial control that they can carry out sustained, concerted military operations and implement AP II.73AP II, Art. 1(1).  Article 3(1) of AP II states that AP II shall not be invoked to “affect[] the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.”

The ICRC’s 1987 Commentary on AP II explains that Article 3(1) does not affect “the right of States to take appropriate measures for maintaining or restoring law and order, defending their national unity and territorial integrity.”74International Committee of the Red Cross (ICRC), Commentary to Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the protection of Victims of Non-International Armed Conflicts, Art. 3, para. 4500, 1987, also noting that Article 3(1) reaffirms the principle of the inviolability of the national sovereignty of States.  As has been noted in the previous post, states recognized that there may be situations where they might need to attack dissident armed forces. They made specific provisions to regulate such conduct, rather than prohibiting a state from attacking its own soldiers in such a situation.

If crimes against humanity could be committed by a State against its own soldiers, states might also, in limited situations, be accused of crimes against humanity for using their soldiers in otherwise legitimate military tactics. In our brief, we used the example of kamikaze pilots, used by the Japanese in World War II to crash into enemy ships. While this military tactic was costly, it resulted in the sinking or damage of 263 Allied ships and was reported to have had a major impact on the Allies’ plans concerning an invasion of Japan.75International Encyclopedia of Military History 706 (James C. Bradford, ed., 2015).

A state using its own soldiers as kamikaze pilots might be deemed to have committed a crime against humanity.76An attack may be defined as a course of unlawful acts such as those enumerated in Article 5 of the Establishment Law (i.e. murder). Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Case 002/01 Judgement, 7 August 2014, E313, para. 178.  Not so, according to Yoram Dinstein: “Some suicide attacks (epitomized by Japanese kamikaze pilots in World War II, flying properly marked military aircraft) are brave manifestations of lawful combatancy.”77Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict n. 235 (3d ed., Cambridge University Press 2016).   Why would states create a law preventing the implementation of military strategies aimed at lawful targets?

What conclusions can be drawn?

An attack by a state or an organization against its own armed forces does not amount to a crime against humanity. Customary international law requires that the population targeted for attack be civilian.  There is a clear distinction between civilians and members of armed forces. They are subject to different standards and protections.

The jurisprudence of the ad hoc tribunals and the ECCC, discussed above, illustrates that this distinction is important in both peacetime and during an armed conflict. Depending on their status, non-civilians, such as persons hors de combat, may be individual victims of crimes against humanity, providing that other requirements are met and the attack is directed against a civilian population.

There is no gap in the protection of soldiers in case of an attack by their own state. A state’s attacks against its own soldiers are not a zero-sum game, i.e., either they are crimes against humanity or they are not a crime. If a regime attempts to cleanse its own armed forces, this might violate international humanitarian law, the Genocide Convention, or national law, depending upon the circumstances of the acts. It would not constitute a crime against humanity. During an armed conflict, every person is either a legitimate military target or a protected person; the two categories are mutually exclusive.78Nils Melzer, The Principle of Distinction Between Civilians and Combatants, in The Oxford Handbook of International Law in Armed Conflict 296-97 (Andrew Clapham & Paola Gaeta, eds., Oxford University Press 2014).

Even in peacetime, or even where the soldiers are hors de combat – and, therefore, no longer a threat – they do not constitute part of the civilian population. This confirms the fundamental nature of the distinction between civilians and members of armed forces. It would be inconsistent to consider a state’s own soldiers as civilians while treating another state’s soldiers hors de combat as non-civilians for purposes of determining the civilian character of an attack, particularly since soldiers hors de combat are unable to fight while a state’s own soldiers could be armed and more dangerous to the state.

As I noted in the first post, the chapeau requirements of crimes against humanity cannot be extended at the ECCC to encompass an attack that is only “primarily” directed against a civilian population or directed against a non-civilian population comprised of soldiers. The attack must be wholly directed against a civilian population.  Finding that an attack may be directed against soldiers reads two words – “civilian” and “population” – out of Article 5 of the Establishment Law’s definition of crimes against humanity. Statutory language must not be ignored simply because it may be inconvenient in achieving a desired (for whatever reason) result.

Even if there is a “gap” in the legal protection of soldiers, it is not for the Court to fill any “perceived” gap through its case law.  The arguments advanced by the amici and the ICP fail. They fail because their arguments are purpose-based: the law on crimes against humanity should protect a state’s own armed forces. While it may be a manifestation of progressive development in the field of international criminal law, meaning the recognition of a re-think in who should be covered under the “civilian population” umbrella for purposes of crimes against humanity, the question asked by Judge Bohlander is not what the law should be, but rather what customary international law was in 1975-1979.

The amici and ICP advocate for an interpretation of crimes against humanity and application of customary international law as they wish it to be today. They advocate their progressive positions by contorting and twisting legal instruments and authority to fit creative, though wanting, arguments. A fine example is their use of post-World War II case law, which, as we have seen in the previous post, simply does not lend credence to their arguments.  Indeed, it is nothing short of a charade to suggest that these obscure, poorly written, unreasoned, and unsupported cases are the basis for concluding that the definition of civilian population encompassed or envisaged the inclusion of soldiers and / or that these cases reflect customary international law.

Instead of objectively reflecting the state of customary international law at the relevant period, certain amici interpret and define “civilian population” to fulfill a moral and ideological aim, such as protecting human dignity and human rights. The effect of attributing such aims to criminal offences blurs the definition of crimes against humanity and violates the principle of legality.

A number of amici attempted to look at other legal regimes, such as international humanitarian and international human rights law, to define the expression “civilian population,” failing to recognize that other legal regimes cannot be used to define and supplement the definitions of international criminal law.

Others attempted to interpret crimes against humanity in the context of purported “purpose,” such as plugging in gaps in international crimes so that certain regimes and their leaders cannot avoid criminal responsibility. As I have already discussed here, there is no gap in legal protection of soldiers when it comes to an attack against them. One needs to look at the target of the attack. For the purposes of crimes against humanity, an attack must be directed against a civilian population. There is no absurdity in prosecuting attacks against soldiers as crimes under national law, or as war crimes, or genocide.

Policy and moral concerns, or merit-based arguments, do not trump the law. Neither can they substitute for the law when the law’s application does not achieve a desired result. The requirement that an attack must be directed at a civilian population cannot be disregarded because it is uncomfortable or inconvenient.  The ECCC must apply the definition of crimes against humanity as set out in the Establishment Law and as it existed in 1975-1979.

In a warning international and internationalized courts would do well to heed, Judge Schomburg advises:

[T]his Tribunal [the ICTY – though the refrain is applicable to all ad hoc tribunals and the ICC] is not acting as a legislator; it is under the obligation to apply only customary international law applicable at the time of the criminal conduct…. It would be detrimental not only to the Tribunal but also to the future development of international criminal law and international criminal jurisdiction if our jurisprudence gave the appearance of inventing crimes – thus highly politicizing its function – where the conduct in question was not without any doubt penalized at the time when it took place.79Prosecutor v. Galić, IT-98-29-A, Judgement, 30 November 2006, Separate and Partially Dissenting Opinion of Judge Schomburg, para. 21.

Looking ahead: should future definitions of crimes against humanity drop the “civilian population” requirement?

In her amicus submissions, Nicholson took a neutral position, admitting that customary international law had not crystallized to consider soldiers, including persons hors de combat, as a “civilian population” for the purposes of crimes against humanity, during armed conflict.80Case of MEAS Muth, 003/07-09-2009-ECCC, Brief of Dr. Joanna as Amicus Curiae in Support of neither Party,22 May 2016, D191/8, p. 5.  She observed that some jurisprudence establishes that soldiers and persons hors de combat can be individual victims of crimes against humanity, if they were part of an attack on civilians as the primary target.  She rightly points out that whether persons hors de combat form part of the civilian population is a distinct issue.

After submitting her amicus brief Nicholson posted on the Opinio Juris blog, Is the Requirement That Crimes Against Humanity Be Committed Against a “Civilian Population” Really Necessary? Nicholson elaborated her position and advocated for dropping the “civilian population” requirement from future definitions of crimes against humanity.

She compared the approach taken by the ICTY Appeals Chamber in Martić and Mrkšić (which held that persons hors de combat are not civilians for the purposes of crimes against humanity, but can be individual victims of crimes against humanity) with the approach of the ICTR Trial Chamber in Akayesu (which found persons hors de combat to be members of the civilian population for the purposes of crimes against humanity). Here Nicholson falters.

She notes that the finding in Akayesu was followed with zero to minimal discussion in subsequent cases before the ICTR. This is more than a stretch. Akayesu was a 1998 Trial Chamber decision. The Kayishema Trial Judgement followed in 1999. Then came the Blaškić Appeals Chamber judgement in 2004. And then the Martić and Mrkšić Appeals Chamber judgments in 2009.  Not to mention the Prlić et al. Trial Chamber decision of 2013. Akayesu reflects one Trial Chamber’s view: it cannot and does not counterbalance the legal authority to be followed, especially from the ICTY Appeals Chamber, which, as Nicholson assuredly knows, is the same second instance court for the ICTR.

More interestingly, Nicholson observes that the ICTY’s approach “presents itself as being the most logical and thoroughly considered,” though she laments it “leaves a certain amount of dissatisfaction.” She notes that “it makes one wonder whether there is a need for a ‘civilian population’ element … at all.” Intriguing, if impractical.  Some argue that genocide should be subsumed within crimes against humanity or that there should be no distinction between international and non-international armed conflicts.  All sensible ideas meriting thought.  After all, this is how law evolves and progresses.

Nicholson finds it problematic that attacks purely against persons hors de combat cannot amount to crimes against humanity. In her view, prosecuting such acts as war crimes “fails to adequately reflect the gravity of the offence, and ignores the symbolic nature that a charge of crimes against humanity has.” She suggests that future definitions of crimes against humanity could omit reference to a “civilian” population and replace the term with simply “population.” Since the “civilian population” requirement “should no longer be considered a necessary element” of crimes against humanity; attacks against persons hors de combat could “be prosecuted as crimes against humanity and can receive the recognition they deserve.”

Here Nicholson makes a value-based argument of sorts, which, in my opinion, detracts from her overall argument.  I can understand that persons hors de combat, because they are effectively mothballed (so to speak), should perhaps be treated as civilians.  But to suggest that we should do so because crimes against humanity have greater symbolic caché than war crimes, is wanting.  That said, kudos to Nicholson for raising the issue in the way she has done in her blog post, as opposed to tailoring her arguments in her amicus brief to arrive at this desired, though untenable, destination.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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